{"id":"alj-H204642-2024-07-15","awcc_number":"H204642","decision_date":"2024-07-15","opinion_type":"alj","claimant_name":"Margaret Freeman","employer_name":null,"title":"FREEMAN VS. MILLER COUNTY JUDGEAWCC# H204642July 15, 2024","outcome":"unknown","outcome_keywords":[],"injury_keywords":["ankle","knee"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/FREEMAN_MARGARET_H204642_20240715.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"FREEMAN_MARGARET_H204642_20240715.pdf","text_length":18906,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H204642   \n \nMARGARET ANNETTE FREEMAN, \nEMPLOYEE                                    CLAIMANT \n \nMILLER COUNTY JUDGE,  \nEMPLOYER                                                     RESPONDENT \n \nASS’N OF ARKANSAS COUNTIES/ \nAAC RISK MG’T SERVICES, INC./ \nINS. CARRIER/TPA                                         RESPONDENT \n \nOPINION AND ORDER FILED JULY 15, 2024, GRANTING THE RESPONDENTS’ \nMOTION FOR AN INDEPENDENT MEDICAL EVALUATION (IME)/SECOND \nOPINION WITH DR. CARLOS ROMAN \n \nIn lieu of a hearing, and upon the parties’ mutual agreement, the disputed issue was submitted for \ndecision to the Arkansas Workers’ Compensation Commission (the Commission), Administrative \nLaw Judge (ALJ) Mike Pickens, based on the record. \n \nThe claimant is represented by the Honorable Neal L. Hart, Hart Law Firm, L.L.P., Little Rock, \nPulaski County, Arkansas. \n \nThe respondents are represented by the Honorable Carol L. Worley and Jarrod Parrish, Worley, \nWood & Parrish, P.A., Little Rock, Pulaski County, Arkansas. \n \nINTRODUCTION \n \n An  amended  prehearing  order  was  filed  in  this  claim  on May  3,  2024. Pursuant  to  their \nmutual agreement, in lieu of a hearing the parties submitted the threshold issue as to whether the \nrespondents are entitled to an Independent Medical Evaluation (IME) for the purposes set forth in \nthe “Issues To Be Litigated...” section, infra and, if so, with what medical provider, for decision \non the record. (Commission Exhibit 1). \n If the parties are able to agree on a physician to conduct the IME, they shall advise the ALJ \naccordingly, and so stipulate in their initial briefs. If they are unable to agree on an IME physician, \nthe parties shall advise the ALJ accordingly in their initial briefs; and each party shall provide the \nnames,  qualifications,  addresses  and  any  and  all  other  available  contact  information  of  two  (2) \n\nMargaret A. Freeman, AWCC No. H204642 \n \n \n \n2 \nphysicians they would recommend for the IME, should the ALJ find an IME is appropriate.  \n In the amended prehearing order filed May 3, 2024, the parties agreed to the following \nstipulations:   \n1. The Arkansas Workers’ Compensation Commission (the Commission) has \njurisdiction over this claim. \n2. The  employer/employee/carrier-TPA  relationship  existed at  all  relevant  times \nincluding June 15, 2022, when the claimant sustained an admittedly compensable \ninjury to her left ankle, left foot, left leg, and right knee for which the respondents \npaid medical and indemnity benefits.                                                                                \n \n3.  The claimant’s average weekly wage (AWW) was $727.38, which is sufficient to \nentitle her to weekly compensation rates of $485.00 for temporary total disability \n(TTD), and $364.00 for permanent partial disability (PPD) benefits. \n \n4.        The  parties  hereby  specifically  reserve  the  issue  of  controversion,  as  well  as  any   \nand all issues not specifically litigated herein. \n \n4. The  claimant’s  treating physician,  Dr.  Ardoin,  opined  she  reached  maximum \nmedical improvement (MMI) on January 18, 2024, and assigned her a permanent \nanatomical  impairment  rating  of  15%  to  the  left  lower  extremity,  which  the \nrespondents have accepted and are in the process of paying. \n \n5.  The  parties  specifically  reserve  any  and  all  other  issues  for  future  determination \nand/or hearing.  \n(Comms’n Ex. 1 at 2). Pursuant to the parties’ mutual agreement, the sole issue submitted for \ndecision on the record was: \n1. Whether the respondents are entitled to an IME concerning whether the spinal cord \nstimulator   Dr.   Frankowski   has   recommended   is   related   to,   and   constitutes \nreasonably necessary treatment for, her compensable injuries. \n \n2. The  parties  specifically  reserve  any  and  all  other  issues  for  future  determination \nand/or litigation. \n \n\nMargaret A. Freeman, AWCC No. H204642 \n \n \n \n3 \n(Comms’n Ex. 1 at 3). \n \n The claimant contends she was involved in an admittedly compensable work accident on \nJune 15, 2022, in which she sustained injuries to multiple body parts, including her left foot, left \nankle, left leg, and right knee. Thereafter, Dr. Ardoin performed surgery on her left ankle, and the \nclaimant contends she now suffers from residual, documented nerve damage, neuralgia, neuritis, \nleft lower leg weakness, left foot drop, possible complex regional pain syndrome, and neuropathic \npain. Dr. Gary Frankowski, a pain management specialist the claimant contends the respondents \nchose, has opined she requires additional medical treatment in the form of a spinal cord stimulator. \nThe  claimant  contends  Dr.  Frankowski’s  recommendation  constitutes  reasonably  necessary \nmedical care related to her compensable injuries and, therefore, the respondents should be required \nto provide it. The claimant states she has a scheduled injury. She contends the respondents’ chosen \nphysician has recommended additional medical care intended to improve her condition, and that \nshe is not currently working as she is unable to work due to her compensable injuries. The claimant \nfurther contends that since the respondents have to date directed all her medical care, on these facts \ncompelling her to see yet another doctor for an IME is not reasonably necessary and, therefore, the \nrespondents’ request should be denied. The claimant contends her attorney is entitled to payment \nof a statutory fee on any and all controverted indemnity benefits; and she respectfully reserves the \nright to  amend  and/or  otherwise  alter  the  above contentions  as  discovery progresses.  All  other \npotential issues except the specific threshold issue concerning the respondents’ entitlement to an \nIME are  expressly  reserved  for  litigation  at  a  later  date  including,  but  certainly  not  limited  to, \nissues  involving  permanent  impairment. The  claimant  also  specifically  reserves  the  issue  of \n\nMargaret A. Freeman, AWCC No. H204642 \n \n \n \n4 \ncontroversion,  as  well  as  any  and  all  issues  not  specifically  addressed  herein,  for  future \ndetermination  and/or  litigation. This  is  a  claim  for  additional compensation,  and the  claimant \nhereby renews  her  request  for  an  award  of  any  and  all  benefits  to  which  she  may  be  entitled \npursuant to the Arkansas Workers' Compensation Act (the Act). (Comms’n Ex. 1 at 3-4). \n The respondents contend that Dr. Frankowski is continuing to treat the claimant for pain \nmanagement,  and  he  has  “suggested”  a  spinal  cord  stimulator  “may”  be  appropriate.  The \nrespondents are simply requesting an IME, which they contend is in essence a second opinion in \norder to determine whether this invasive surgical recommendation is appropriate for treatment of \nthe claimant’s compensable injuries. The  respondents  further  contend  the  ALJ  has  the  statutory \nauthority to grant their motion for an IME/second opinion, especially based on these facts given \nthe invasive nature and arguably ineffective clinical efficacy of Dr. Frankowski’s recommendation \nherein. The respondents contend they have not controverted any medical or indemnity benefits in \nthis claim to date, and specifically reserve this and any and all other issues not specifically litigated \nherein for future determination and/or litigation. (Comms’n Ex. 1 at 4). \n The record shall include the Amended Prehearing Order filed May 3, 2024 (Commission’s \nExhibit 1); the claimant’s brief and attached medical exhibit (Claimant’s Exhibit 1 and 1A, \nrespectively); and the respondents’ brief and attached curriculum vitae (CV) of Dr. Carlos Roman \n(Respondents’ Exhibit 1 and 1A, respectively). \nSTATEMENT OF THE CASE \n In her brief the claimant outlines her injury and treatment history and, in essence, argues \nthe respondents’ have directed all the claimant’s care since her admittedly compensable left ankle \n\nMargaret A. Freeman, AWCC No. H204642 \n \n \n \n5 \ninjury of June 15, 2022; that Dr. Frankowski has diagnosed the claimant with a nerve injury and \nhas recommended the surgical insertion of a spinal cord stimulator for treatment of the claimant’s \ncontinued complaints of pain and weakness and, therefore, adding yet another opinion to the record \nin the form of an IME/second from Dr. Carlos Roman is not reasonably necessary on these facts. \nIn  the  alternative – and  without  conceding  the  aforementioned  affirmative  contention – the \nclaimant argues that if the ALJ believes an IME/second opinion is reasonably necessary on these \nfacts,  either  Dr.  Brent  Walker  of  OrthArkansas,  or  Dr.  Jonathan  Goree  of  the  University  of \nArkansas  for  Medical  Sciences  would  be  better  qualified  than  Dr.  Roman  to  provide  such  an \nIME/second opinion on these facts. (CX at 1-8).  \n The respondents counter citing relevant Arkansas statutes and case law, and argue that: (1) \nan IME/second opinion is reasonably necessary in this claims to determine whether the claimant’s \ncurrent complaints are related to the compensable injury, as well as to determine the likely efficacy \nof the spinal cord stimulator Dr. Frankowski has offered in what appears to be a last-attempt/effort \nto  relieve  the  claimant’s  continued  complaints  of  pain  and  weakness;  (2) Dr.  Frankowski’s \nrecommendation that the claimant undergo surgery for the insertion of a spinal cord stimulator to \ntreat “causalgia” is not based on an objective medical diagnosis; and (3) the fact the respondents’ \nhave directed the claimant’s care does not preclude the an IME/second opinion to address  the \naforementioned medical issues. (Responds’ Ex. 1 at 1-9).        \nDISCUSSION \n It is well-settled in Arkansas workers’ compensation law that the Commission has broad \ndiscretionary authority to order an IME/second opinion. Ark. Code Ann. §11-9-511 (2024 Lexis \n\nMargaret A. Freeman, AWCC No. H204642 \n \n \n \n6 \nReplacement) states: \n(a) An injured employee claiming to be entitled to compensation shall \nsubmit  to  such  physical  examination  and  treatment  by  another \nqualified  physician,  designated  or  approved  by  the  Workers’ \nCompensation  Commission,  as  the  Commission may  require  from \ntime to time if reasonable and necessary. \n \n(b) The  places  of  examination  and  treatment  shall  be  reasonably \nconvenient for the employee.  \n \nMoreover, Ark.  Code  Ann. Section  11-9-811  (2024  Lexis  Repl.) prescribes  as \nfollows:  \nUpon its own initiative at any time where compensation payments are being \nmade without an award, the Workers’ Compensation Commission may and \nin any case where the right to compensation has been controverted or where \npayments  of compensation  have  been  suspended,  or  where  an  employer \nseeks to suspend payments made under an award o, or on an application of \nan  interested  party,  the commission  shall  make  such  investigation,  cause \nsuch  medical  examination  to  be made,  hold  such  hearings,  and  take  such \nfurther  action  as  the  commission  deems  proper  for  the  protection  of  the \nrights of all the parties. \n \nAnd see, Plants v. Townsend Curtner Lumber Co., 247 Ark. 824, 448 S.W.2d 349 (1969). (Note: \nAct 796 of 1993 did not amend the plain language or change the clear meaning of this provision \nand the cases decided under it prior to the enactment of Act 796.). \n Based on the relevant medical evidence in the record, it is abundantly clear the ALJ has \nthe broad discretionary authority pursuant to the aforementioned statutes to both grant a party’s \nrequest  for  an  IME/second  opinion  when  such  an  IME/second  opinion  is reasonably necessary, \nand/or is proper in order to protect the parties’ rights. Here, I find an IME/second opinion by an \nindependent (i.e., a physician who is not so directly invested in the patient’s care so as to be \n\nMargaret A. Freeman, AWCC No. H204642 \n \n \n \n7 \nunlikely and/or  unable  to  render  an  opinion  based  on  objective  medical  facts  and  evidence  as \nopposed to subjective factors), qualified physician specialized in pain management treatment. \n First, the respondents are correct in their argument that the fact they have the statutory right \nto direct the claimant’s medical care – subject, of course, to the claimant’s right to a one (1)-time-\nonly  change  of physician  examination  at  the  respondents’ expense – undoubtedly  is  legally \naccurate, and is a settled holding in Arkansas workers’ compensation law. I do not find the fact \nDr.  Frankowski  is  the  physician  who  has  recommended  the  surgical  insertion  of  a  spinal  cord \nstimulator into the claimant’s body – apparently  as  a  last-ditch, “hail-Mary” effort to treat the \nclaimant’s  continued  complaints  of  pain  and  weakness  based  on  a  rather  vague  diagnosis \napparently devoid of sufficient objective medical evidence – is dispositive on these facts. \n Second, in this case in order to protect the rights of both parties herein – and particularly \nto  protect  the  claimant  against  the  possibly  unnecessary  risks  of  surgery  to  insert  a  spinal  cord \nstimulator into her body that has not as yet been demonstrated to more likely than not be effective \nin order to treat her continued complaints of pain and weakness. Indeed, even the origin/diagnosis \nof the cause of the claimant’s complaints appears to be medically unclear from the record as \ndeveloped as of this date. An, similarly, it is likewise unclear as to the probability of the efficacy \nof a spinal cord stimulator. The claimant’s inherent right to reasonably safe and effective medical \ncare  is  not  well-served  by  surgical  intervention  unless  such  surgical  intervention  is  more  likely \nthan not to effectively treat the underlying condition. And, of course, the claimant’s rights must be \nconsidered in light of the respondents’ right to pay for only such treatment that is related to and \nreasonably necessary for treatment of the compensable injury. Proposed treatment that is risky or \n\nMargaret A. Freeman, AWCC No. H204642 \n \n \n \n8 \nexperimental, or based on insufficient medical evidence demonstrating it is more likely than not \nto be effective in treating the claimant’s underlying condition would appear to be an unnecessary \nrisk for the claimant, and an unnecessary expense for the respondents. Here, on these facts, and \ndespite the claimant’s medical tests and treatment to date, we have more unanswered medical \nquestions than we have answers to those questions. Consequently, an IME/second opinion is both \nreasonably  necessary  and  proper  to  protect  the  rights  of  both  the  claimant  and  the  respondents \nbased on the aforementioned statutes.  \n       It is imminently fair and reasonable to obtain a truly independent IME/second opinion to \nensure  the  complaints  the  proposed  spinal  cord  stimulator  is  intended  to  treat  are  related  to  the \nclaimant’s  compensable  right  ankle  injury,  and  that  the  procedure – which  is  not  without \nsignificant risks, including but not limited to the well-known risks of infection, and having to be \nremoved via a separate surgical procedure if it proves to be ineffective in alleviating the claimant’s \ncomplaints – is reasonably necessary for treatment of the claimant’s continued complaints.   \n Third,  while  I  appreciate  the  claimant’s  suggestion  of  physicians  to  conduct  the \nIME/second opinion, I am unfamiliar with these physicians. I am, however, well-familiar – as is \nthe  Commission – with  Dr.  Carlos  Roman,  his  professionalism  and  expertise.  Consequently,  in \nthis case and on these particular facts, I find Dr. Roman is the most appropriate pain management \nspecialist/physician to provide an IME/second opinion in this case.         \nTherefore, for all the aforementioned reasons I hereby make the following findings of fact \nand conclusions of law: \n \n\nMargaret A. Freeman, AWCC No. H204642 \n \n \n \n9 \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n1. The Commission has jurisdiction over this claim. \n2. The stipulations to which the parties agreed in the amended prehearing order filed May 3, \n2024, hereby are accepted as facts. \n  \n3. Pursuant to the Commission’s authority to order an IME(s)/second opinion as set forth in \nArk. Code Ann. Sections 11-9-511 and 11-9-811, supra, I find an IME/second opinion in \nthis claim to be both reasonably necessary and proper in order to protect the rights of both \nparties herein for the reasons set forth, supra.  \n \n4. I hereby grant the respondents’ motion for an IME/second opinion, and find that Dr. Carlos \nRoman – a pain medicine specialist well-known to this Commission – is the most qualified, \nindependent physician to conduct the IME on the facts of this particular case. Dr. Roman \nhas both the expertise and independence and, therefore, is in the very best position on these \nparticular facts to determine both the risks associated with as well as the probable efficacy \nof the surgical insertion of a spinal cord stimulator to treat the claimant’s continued pain \ncomplaints in her left ankle/left lower extremity. \n \n5. The parties shall cooperate in the scheduling of this IME/second opinion with Dr. Roman. \nMoreover, this IME/second opinion shall in all respects be conducted in accordance with \nand governed by the applicable provisions of Arkansas law set forth above in Paragraph 3. \n \n6.  The parties shall submit a copy of this opinion and IME order to Dr. Roman, along with \nany  and  all  relevant  medical  records,  as  well  as  both  the  reports  and  the  original \nfilms/results,  etc.,  of  any  relevant  diagnostic  tests, and any  and  all other  relevant \ndocuments, if any, in order that Dr. Roman shall have the benefit of any and all available \nmedical records and findings in conducting his independent records review and physical \nexamination. \n \n7. I specifically find that the case of Burkett v. Exxon Tiger Mart, Inc., 2009 Ark. App. 93, \n304 S.W.3d 2 (Ark. App. 2009) is inapplicable to the facts of this case, and does not prevent \nthe ALJ from appointing an IME on these facts. In Burkett, the ALJ ordered an IME after \nthe parties already had litigated the issues of compensability and the claimant’s entitlement \nto additional benefits, had rested their respective cases, and the record had been closed. \nThat  clearly  is  not  the  case  here. As  the  record  conclusively  demonstrates,  both  the \nclaimant’s and respondents’ were given due  and  proper notice and  an  opportunity  to  be \nheard on the sole issue in dispute herein.  \n \n \n \n\nMargaret A. Freeman, AWCC No. H204642 \n \n \n \n10 \nIT IS SO ORDERED. \n \n \n       Mike Pickens \nAdministrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H204642 MARGARET ANNETTE FREEMAN, EMPLOYEE CLAIMANT MILLER COUNTY JUDGE, EMPLOYER RESPONDENT ASS’N OF ARKANSAS COUNTIES/ AAC RISK MG’T SERVICES, INC./ INS. CARRIER/TPA RESPONDENT OPINION AND ORDER FILED JULY 15, 2024, GRANTING THE RESPONDENTS’ MOTION FOR AN...","fetched_at":"2026-05-19T22:51:20.496Z","links":{"html":"/opinions/alj-H204642-2024-07-15","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/FREEMAN_MARGARET_H204642_20240715.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}